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Samantha Bangham’s Week in Cases 2 August 2013

Law Reporter

As the judicial term draws to a close I offer you another action-packed selection of cases.

Perhaps the most significant judgment this week was London Borough of Tower Hamlets v R (X) [2013] EWCA Civ 904, [2013] FLR forthcoming, in which the Court of Appeal upheld the decision of the Administrative Court ([2013] EWHC 480 (Admin), [2013] 2 FLR 199) that the local authority policy of paying unrelated foster carers at a higher rate than family foster carers was unlawful as a matter of domestic law. The applicant in the case was rightly described as one of the unsung heroes of society for her commitment to her two nephews and niece, all of whom were damaged and extremely challenging children to care for. The children had been neglected in the care of their parents who had learning difficulties, in addition the father was schizophrenic and the mother had problems with drugs and alcohol. Taking on the three children, after they had been placed in three foster placements which all broke down, necessitated the applicant moving house, giving up her job and becoming reliant on State benefits. The local authority’s appeal was dismissed. The statutory guidance had to be complied with unless there were exceptional circumstances to justify a departure. There was no doubt that the local authority had failed to comply with the guidance by treating the woman unfairly and failing to ensure that allowances paid to related foster carers were not less than those paid to unrelated carers. It was impossible to say that the judge reached the wrong conclusion in finding the local authority had failed to provide cogent reasons for a departure from the guidance.

Another noteworthy judgment from the Court of Appeal was Re V (Long-Term Fostering or Adoption) [2013] EWCA Civ 913 in care proceedings involving two children, aged 5 and 9, the judge found they had been exposed to physical violence in the parents’ relationship and had suffered emotional harm as a result. In addition the father had been imprisoned for sexual offences against four victims ranging from a 16-year-old boy to a disabled woman. The children were removed from the mother’s care when it became evidence that her mental health had deteriorated. Following their removal, the children had supervised contact with the mother and father but on a number of occasions the mother’s behaviour had been inappropriate. The local authority care plan was for adoption of the children and it sought care and placement orders. The judge approved the plan insofar as the children should be accommodated but instead ordered the children to be accommodated via long-term fostering rather than adoption, with regular parental contact. The local authority appealed. The Court of Appeal allowed the appeal. The judge had been wrong to conclude that long-term fostering would serve the best interests of the children. The local authority plan for adoption was approved and care and placement orders were granted. The trial judge had been persuaded that the children had a strong and valuable relationship with their parents which ought to be preserved. However, the good quality of the father’s contact had to be viewed in the context of his inability to care for the children when the mother was having mental health difficulties. The problems with the mother’s contact outweighed any potential benefit the father having contact offered the children.

In the Family Division, His Honour Judge Bellamy, sitting as a High Court judge heard the case of Re K (Wardship: Publicity) which concerned the breakdown of the adoptive placement of a 16-year-old girl. Due to her challenging behaviour she was accommodated by the local authority but had since been subject to a sexual assault, she had been arrested for a serious assault on a member of staff and the local authority had been granted a final care order. Following a hearing in the Court of Appeal a wardship order was granted as being more appropriate in the circumstances. The parents now wished to be able to discuss the case in the media and applied for the discharge of an order previously made preventing publicity of the case. The parents wanted to publicise their charity which focused on reactive attachment disorder, they also wished to discuss the local authority approach to the case as well as joining the debate on transparency of the family courts. As the girl was a ward of court the only statutory prohibition on publication was s 12 of the Administration of Justice Act 1960. The application engaged the girl’s Art 8 rights under the European Convention as well as the parents’ Art 10 rights. The welfare of the girl was not the paramount consideration but it was one of the issues to be taken into account. The case raised wider issues including delays in the adoption process and the shortage of prospective adopters as well as the need to provide adopters with sufficient information about the child’s background. These issues were issues of genuine public interest. The balance fell in favour of permitting the parents to discuss the case with the media but the order prohibiting publication would remain in place until the girl reached 18 in January 2014 and nothing should be reported which would lead to revealing the identity of the girl and her parents.

The judgment in the case of Sekhri v Ray [2013] EWHC 2290 (Fam), attracted media attention this week primarily for the high legal costs that had been incurred by the parties - £860,000 in England, Singapore and India in circumstances where their combined wealth was approximately £4m. The judge described the expenditure as financial suicide. The husband and wife were married for 2 years and had a son together. During the marriage they relocated to Singapore but the marriage deteriorated. When the wife wrongfully removed the child to England the couple separated and she issued divorce proceedings in England. The wife, whose domicile of origin was Indian, claimed that while she and the husband were habitually resident in Singapore at the time she issued proceedings, she claimed to have adopted an English domicile of choice. While the husband submitted that in leaving England she had abandoned her domicile of choice and her domicile of origin reverted. A number of factors indicated that the wife had not lost her domicile of choice: both she and the husband retained properties in England; the wife maintained her professional connections and subscriptions including to a medical job vacancy service which reinforced her contention that she always planned to return to England to take up a consultancy position. The judge accepted the wife’s strongly asserted position that the move to Singapore had been time limited and she planned to resume her career and residence in England. Despite his Indian ancestry the husband had been born in England and considered himself to be domiciled here. The court, therefore, had jurisdiction to proceed the divorce petition to decree nisi.

The case of Re CtL and CmL (Welfare Hearing: Expert Report) [2013] EWHC 2134 (Fam) concerned care proceedings in relation to six children, of three different sets of parents, all connected to the same family. Local authority involvement began when a computer was seized from the home of the maternal grandmother and her husband which contained indecent images of children. Just a few months later the one of the mothers gave an account to the police which included her having been abducted, blackmailed and forced to commit a sexual act on her 5-year-old son. Local authority investigations revealed a history of sexual and physical harm within the extended family. At a fact-finding hearing a number of individuals in the family were found to present sexual and physical risk to the children of the family. There was a lack of sexual boundaries and failure to protect the children. The welfare stage took place in relation to CtL and CmL, who were 7 and 4 years old respectively. Just prior to the hearing the children’s guardian changed her position which had previously been in support of the children being placed in long-term foster care, to one of recommending adoption. A report from a child and adolescent psychiatrist noted insecure and ambivalent attachment patterns between the children and their mother and maternal grandmother. That report was found to contain an abundance of tedious detail about contact visits which was unnecessary particularly considering the Family Justice System reforms in relation to expert evidence. He recommended long-term fostering preferably with the current carers but failed to discuss the benefits of that course to the children compared with adoption. In stark contrast to the judge’s findings he also recommended continuing parental contact on an unsupervised basis. The judge found his recommendations unsustainable.

The evidence of the other professionals involved in the case attested to the desirability, feasibility and overwhelming priority of providing the children with a permanent family through adoption. The children’s welfare throughout their lives would be best promoted through adoption. The judge was persuaded that it was necessary and proportionate to interfere with the mother's and the children's Art 8 rights in the way proposed by the local authority's final care plan on the basis that the children's welfare required such an intervention and that no lesser form of intrusion would suffice so as to preserve their safety as well as ensure their development throughout their childhood and beyond. The children’s overwhelming pressing need was for a move to a family they could call their own and to receive complete stability and security. The parents’ consent was dispensed with and final care and placement orders were granted.

Now that the courts have shut up shop for the summer and the judges are en route to the South of France/Bahamas/Bournemouth I would imagine things will become a little quieter so please do continue to send me any judgments you may have lying around which are potentially of interest. Otherwise, I can always I will have no problem in filling this column with talk of dogs, cats, handbags, shopping, wine … the list is endless.

Next week you may be sad to hear I will be absent as I am acting as the support crew for my husband’s charity kayaking challenge from Devizes to Westminster in aid of Arthritis Research UK. I will be providing updates on their progress @2gopaddling and if you would like to do so you can sponsor him at www.justgiving.com/2meninak2.